December 03, 2003
City's 'Exclusion Zones' Found Unconstitutional, Council Set To Make Changes
Portland's ever-controversial "drug-free zones" were declared unconstitional Monday by a Multnomah County judge:
The ordinance allows those officers to order such individuals to stay out of an area. But Attorney Julie Stevens, who successfully challenged the ordinance, says that's simply not fair -- because officers don't have to prove any crime has taken place, they simply have to suspect something happened.
Julie Stevens: "A person can literally be banned from an area for 90 days because a police officer thought he or she saw something. And if the client actually asks for a hearing, the hearings officer doesn't have to find that a crime occurred. The hearings officer just has to find that the police officer saw enough to have probable cause to think that a crime occurred."
And moving to yesterday's story in The Oregonian:
In a 38-page opinion, Judge Michael Marcus said the standard that a city hearings officer uses to determine whether police were warranted in issuing exclusions is insufficient in that it simply reviews an officer's belief that probable cause existed -- but does not require further proof.
Because of that, "the city has denied a person seeking review the right to insist on an independent fact finding whether that person has indeed committed such a crime -- when it is the commission of such a crime that gives the city its only legitimate basis for excluding that person from a portion of the city, " Marcus wrote.
Marcus also pointed out that reviews occur in only a fraction of the cases -- when the person who has been excluded appeals to the hearings officer within a 10-day deadline.
And so, during this morning's session of the City Council, an emergency ordinance to "Amend City Code on Drug-Free Zones hearing standard regarding Appeal and Variances to the standard of proof of preponderance of evidence" (as well as a similar one for the City's exclusions zones for prostitution) will be voted on as part of the "consent agenda" -- meaning there will be no discussion or testimony.
During her regular weekly chat with OregonLive yesterday, Mayor Vera Katz had this to say:
I haven't seen the ordinance, but we will be making the corrections on the drug-free zones in the hope of making some corrections that the judge directed us to do.
In other words, changes to how the exclusion zones function will be made via emergency ordinance, as part of the consent agenda, with at least the Mayor not having seen it during the day immediately preceding.
Reportedly, the ordinance(s) will change the level of proof required to one based upon "preponderance of the evidence" -- up from the current "probable cause."